ENHANCED DIRECTORY ASSISTANCE-REGISTERED TRADEMARK-
& ENHANCED TELECOM SERVICES-TM-
AGREEMENT
BETWEEN
CUSTOMER
AND
METRO ONE
TABLE OF CONTENTS
1. DEFINITIONS..........................................................................................4
2. PROVISION OF EDA SERVICES............................................................................6
3. INTERFACE AND SUPPORT...............................................................................10
4. PERSONNEL...........................................................................................10
5. GOVERNMENT APPROVALS................................................................................10
6. COMPENSATION & TERM.................................................................................10
7. MARKETING...........................................................................................11
8. TRADEMARK & SERVICEMARK.............................................................................11
9. ASSISTANCE..........................................................................................12
10. RECORDS.............................................................................................12
11. COMPLAINTS..........................................................................................13
12. CONFIDENTIAL INFORMATION............................................................................13
13. INDEMNIFICATION.....................................................................................15
14. CALL MONITORING / RECORDING FEATURE.................................................................15
15. DISPUTE RESOLUTION.................................................................................177
16. TERMINATION.........................................................................................19
17. ASSIGNMENT..........................................................................................20
18. UCC.................................................................................................20
19. SERVICE TESTING.....................................................................................20
20. SURVIVAL OF OBLIGATIONS.............................................................................20
21. CAPTIONS............................................................................................20
22. NOTICES.............................................................................................21
23. SEVERABILITY........................................................................................21
24. INDEPENDENT CONTRACTOR..............................................................................21
25. NO THIRD PARTY BENEFICIARIES........................................................................21
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-2
26. FORCE MAJEURE.......................................................................................21
27. LIMITATION OF LIABILITY.............................................................................22
28. WAIVER..............................................................................................22
29. APPLICABLE LAW......................................................................................22
30. ENTIRE AGREEMENT....................................................................................22
EXHIBIT 1 CALL ORIGINATION AND COMPLETION AREAS......................................................24
EXHIBIT 2 NUMBERS EXPRESSLY PROHIBITED BY CUSTOMER...................................................25
EXHIBIT 3 TIMELINE TASKS.............................................................................26
EXHIBIT 4 INVOICE....................................................................................27
EXHIBIT 5 RATES......................................................................................29
EXHIBIT 6 FAILURE NOTICE.............................................................................30
EXHIBIT 7 PRINCIPLE SITES FOR PROVISION OF SERVICE...................................................31
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-3
ENHANCED DIRECTORY ASSISTANCE-REGISTERED TRADEMARK- AGREEMENT
THIS AGREEMENT is made this ____ day of __________, 1999, by and
between ____________("CUSTOMER"), a __________ Corporation and Metro One
Telecommunications, Inc., an Oregon Corporation ("Metro One").
WHEREAS, CUSTOMER provides telecommunications services in the Call
Origination Area, as defined below;
WHEREAS, Metro One provides directory assistance services; and
WHEREAS, CUSTOMER and Metro One desire for Metro One to provide
telephonic enhanced directory assistance services and enhanced telecom services
to CUSTOMER Callers, as defined below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the sufficiency of which are hereby acknowledged, CUSTOMER and
Metro One agree as follows:
1. DEFINITIONS.
a. AGREEMENT means this Agreement and all Exhibits hereto.
b. CUSTOMER NETWORK means the communications network provided by
CUSTOMER.
c. CALL ORIGINATION AND COMPLETION AREAS mean, in the case of
call origination, the geographic regions CUSTOMER defines as
its calling area which consists of the areas set forth in
Exhibit 1, as amended from time to time by mutual written
agreement of the parties and, in the case of call completion,
the call termination areas set forth in Exhibit 1.
d. CONFIDENTIAL INFORMATION means all information, not generally
known to the public, that relates to the business, technology
and network-related systems, Callers, finances, plans
(including marketing plans), proposals or practices of the
parties to this Agreement, and it includes, without
limitation, information relating to the System described in
Section 1.n ("Definitions") herein and the number,
destination, duration, or other call-related information, the
identities of all Callers, Customers and prospects, all
reports or other records provided pursuant to this Agreement,
all business plans and proposals, all marketing plans and
proposals, all technical plans and proposals, all research and
development, all budgets and projections, all nonpublic
financial information, all information designated as
"confidential" and/or "proprietary," and all other information
and matters not generally
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-4
known to the public. In using the term "Confidential
Information", the provisions of this subsection shall apply to
every form whatsoever, including, without limitation,
information that exists, whether written, oral or
electronically stored on film, tape, computer disk or other
form of media.
e. ENHANCED DIRECTORY ASSISTANCE-REGISTERED TRADEMARK- (EDA) AND
ENHANCED TELECOM SERVICES mean the live-operator enhanced
directory assistance services provided by Metro One to
CUSTOMER and its Callers pursuant to this Agreement. EDA
includes, but is not necessarily limited to (i) call
completion by outpulsing to CUSTOMER's Switch the digits of
the Caller-requested number; (ii) provision of name, address
and telephone number when requested and when legally available
through Metro One's database and systems; and (iii) any other
product or features agreed upon between Metro One and
CUSTOMER.
f. LATA means local access and transport area.
g. LEC means a Local Exchange Carrier or Competitive Local
Exchange Carrier providing service in a Call Completion Area.
h. SWITCH means CUSTOMER'S or Metro One's telephone switching
equipment.
i. NPA means area code as defined by the Numbering Plan of the
American National Standards Institute.
j. NXX means the assigned local exchange within an area code.
k. OPERATORS means the live operators utilized by Metro One in
providing EDA to Callers.
l. CALLER means a person or entity to whom CUSTOMER provides
telecommunications service in the Call Origination Area,
including Customers of other telecommunications service
providers when such Customers are calling from within the Call
Origination Area and are using CUSTOMER's Switch.
▇. ▇▇▇▇▇▇▇▇-REGISTERED TRADEMARK- means Metro One's proprietary,
patented feature and related technology that allows Callers
continuous access to live operators, when enabled, throughout
the entire call or calling session by pressing the star (*)
key for approximately one second. StarBack-REGISTERED
TRADEMARK- is a registered trademark of Metro One.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-5
n. SYSTEM. Metro One has developed a proprietary system to enable
it to perform EDA services (the "System"). The System uses
business, residential and government databases, including
on-line national database system access and a backup database
connection to the LEC's database. The System utilizes an
automatic voice playback system and live operators.
o. EDA SERVICES NUMBERS. CUSTOMER shall route to Metro One all
411, 1-411, 555-1212, ▇-▇▇▇-▇▇▇▇, (NPA)-555-1212,
1-(NPA)-555-1212 calls or any other calls dialed to any other
standard Directory Assistance routing method that may be
assigned and/or used as its successor to the extent those
calls are generated from within the Call Origination Area. In
the event national numbering standards or direction from
competent jurisdiction should mandate a change to the above
listed directory assistance access numbers, CUSTOMER shall
route all calls to such successor numbers as described above.
p. SHORT MESSAGE SERVICES means services in which Metro One
facilitates transmission of short text messages through
assistance of its live operators. Short Messages may be
approximately 120 alphanumeric characters or less in length.
2. PROVISION OF EDA SERVICES.
a. STAFFING. Metro One shall utilize qualified, properly trained,
professional, and courteous Operators in providing the EDA
services to Callers.
b. GREETING AND CLOSING. Metro One shall answer all calls made to
the EDA Services Numbers with a greeting and closing to be
determined mutually by CUSTOMER and Metro One. Such greeting
shall not exceed five (5) seconds and such closing shall not
exceed twelve (12) seconds in length. All such greetings and
closings may be made by means of the automated voice playback
system.
c. HOURS OF OPERATION. Metro One shall staff twenty-four (24)
hours a day, seven (7) days a week, three hundred and
sixty-five (365) days a year (or three hundred and sixty-six
(366) days per year, as the case may be), with a sufficient
number of Operators to perform the services required
hereunder.
d. ANSWER STANDARD. Metro One shall, except as provided in
Section 26 ("Force Majeure") below, provide sufficient
Operators and equipment to ensure that 80% of the answered EDA
calls, within a given calendar month, shall be answered in
four (4) rings (24 seconds) or less. Metro One shall use
commercially reasonable efforts to answer all EDA calls within
four (4)
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-6
rings (24 seconds) or less. Metro One shall report the
percentage to CUSTOMER monthly.
e. ABANDONED STANDARD. In no event, except as provided in Section
26 ("Force Majeure") below, shall Metro One allow more than
five (5) percent of the EDA calls within a given calendar
month, to be Abandoned. ABANDONED means calls that wait for
more than four (4) rings (24 seconds) and go unanswered. Metro
One shall report the percentage to CUSTOMER monthly.
▇. ▇▇▇▇▇▇▇▇(R). In performing the Enhanced Directory
Assistance services, Metro One shall remain accessible to the
Caller throughout the call using StarBack(R), when enabled, or
by other means. Other than through its Call Monitoring /
Recording (Section 14), and other quality control procedures,
Metro One shall not otherwise monitor, record, listen to or
divulge the contents of any communication, or any other
information regarding Callers or calls.
g. CALL COMPLETION. At a Caller's request, Metro One shall use
good faith to perform the EDA services, provided the
residence, business or government related to the requested
service is located within the Call Completion Area and the
information is legally available in the Metro One System.
Under no circumstances shall Metro One knowingly perform call
completion services where the requested information relates to
a residence, business or government listing located outside
the Call Completion Area as then defined.
h. SYSTEM. At a minimum, Metro One shall use good faith efforts
to keep the System accurate to the same degree as the database
of the LEC for listings within the Call Completion Area.
Notwithstanding the foregoing, Metro One shall be excused from
performance to the extent that any LEC or other Metro
One-selected data provider does not make data available to
Metro One under commercially reasonable terms acceptable to
Metro One in its sole discretion. In the event Metro One does
not have sufficient information in the System to provide any
one of the EDA services, it shall utilize such other sources
as necessary to provide the requested EDA services, including,
without limitation, the back-up database provided as an
on-line service by the LEC or LEC operator delivered directory
assistance. In the event that either (i) a Caller requests the
LEC directory assistance operator, or (ii) Metro One cannot
provide any one of the requested EDA services, Metro One shall
route a Caller's telephone call to the LEC directory
assistance operator. In such a case, Metro One shall charge
CUSTOMER the per call fee in Section 6.a. (Compensation and
Term) only, not the LEC's fees.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-7
i. SYSTEM AND SOFTWARE MAINTENANCE. Metro One shall maintain the
System in such a manner as to ensure an annual System
availability of 99.00%, excluding scheduled maintenance
downtime which shall be mutually agreed to in writing, within
a given service year for the provision of the EDA services
j. PROHIBITED NUMBERS. Metro One agrees to route Caller calls to
any number requested by Caller within the Call Completion Area
that is legally available through the Metro One System,
provided however, that such number or service is not expressly
prohibited by CUSTOMER (expressly prohibited numbers are set
forth in Exhibit 2). In the event Metro One should direct a
call to a prohibited number, Metro One shall be solely
responsible for fees associated with such call.
k. 911. CUSTOMER shall not route 911 calls to Metro One. If an
emergency call is received by Metro One the caller shall be
asked to dial "9-1-1" after disconnecting.
l. MULTIPLE REQUESTS. Callers shall be entitled to a maximum of
five (5) directory assistance requests per call. Use of any
EDA feature (such as StarBack(R)) that returns the Caller to
the Operator shall be counted as a directory assistance
request.
m. MULTIPLE LISTINGS. When the System indicates that more than
one address or telephone number pertains to a directory
assistance request, Metro One shall at the Callers request,
provide up to two multiple addresses and telephone numbers at
no additional charge.
n. ALTERNATE BILLING. Callers who request credit or "calling"
card services shall be advised to dial "0" or "00" after
disconnecting to reach the appropriate operator for such
services.
o. TIMELINE. Metro One and CUSTOMER shall mutually cooperate and
support one another to accomplish timeline tasks as outlined
in a form consistent with Exhibit 3. Upon mutual written
agreement, the timeline schedule as outlined in Exhibit 3 may
change with respect to any specified task. The "Go Live Date"
shall be specified in for each Call Origination Area as
appropriate.
p. DEFICIENCIES PROCEDURE. Any deficiencies which relate to the
provision of EDA services and do not pertain to failure of the
Metro One System shall be addressed in the following manner:
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-8
i. Either party shall provide the other (the "Notified
Party") with written notice of the deficiency.
ii. The Notified Party shall acknowledge the receipt of
the deficiency notice in writing within two (2)
business days from receipt of notice to the other.
iii. Within seven (7) business days of notice of the
deficiency, the Notified Party shall propose a
solution to the deficiency to the other in writing.
Within seven (7) additional business days, if both
parties find the proposed solution acceptable, the
Notified Party shall agree in writing to remedy the
deficiency in the agreed manner on a mutually agreed
timeline.
iv. If either party finds the solution proposed by the
other to be unacceptable or if the Notified Party
fails to remedy a deficiency in a manner which is
acceptable to the other as set forth above, the
matter shall be submitted to binding arbitration
pursuant to Section 15 ("Dispute Resolution").
q. SYSTEM FAILURE. A System Failure is defined as the inability
of either party to provide EDA services to Callers for a
period of more than ten minutes, other than scheduled
maintenance as provided for in Section 2.i. ("Provision of EDA
Services"). During any System Failure, CUSTOMER may direct all
EDA calls to any third party selected by CUSTOMER.
Each party shall, as soon as it becomes aware of any System
Failure, notify the other of the System Failure by telephone
and facsimile (the "Failure Notice" as shown in Exhibit 6).
The prioritized list of all addresses, facsimile numbers and
telephone numbers for the parties related to the Failure
Notice is attached as Exhibit 6.
CUSTOMER and Metro One acknowledge and agree that minor,
occasional and infrequent deviations (including mechanical,
electronic, software, third party vendor and human deviations)
from Metro One's conformance with performance standards shall
not constitute material breach or default under this Agreement
r. CALL ROUTING. CUSTOMER shall route to Metro One all EDA calls
as defined in Section 1.o ("Definitions"). Any breach of this
Section 2.r. ("Provision of EDA Services") shall be material.
s. PRINCIPLE SITES FOR PROVISION OF SERVICE. Refer to Exhibit 7.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-9
t. SHORT MESSAGE SERVICES. Metro shall provide Short Message
Services at the rates shown in Exhibit 5.
3. INTERFACE AND SUPPORT.
a. FACILITIES. Metro One shall maintain adequate and appropriate
office facilities, support facilities and other facilities and
equipment necessary to enable Metro One to perform its
obligations under this Agreement.
b. TELECOMMUNICATIONS EQUIPMENT. CUSTOMER shall, at its expense,
establish and maintain all T-1 trunk lines and other
telecommunications facilities and equipment needed for
adequate performance between CUSTOMER'S Switch and the
building minimum point of termination for Metro One's location
for purposes of performing the EDA services. Metro One shall
be responsible for establishing, maintaining, and paying for
all other telecommunications facilities and equipment
necessary to perform the EDA services, including but not
limited to those required for interconnection from Metro One
to the on-line LEC database.
4. PERSONNEL.
CUSTOMER may notify Metro One if, in CUSTOMER'S opinion, any Metro One
employee performing EDA services is unqualified, discourteous or fails
to conform to CUSTOMER'S standards for CUSTOMER service. Metro One
shall take such prompt action as it deems reasonable to correct such
non-conformance.
5. GOVERNMENT APPROVALS.
CUSTOMER shall obtain all necessary regulatory approvals required of it
for the provision of EDA services in the Call Origination Area. To the
extent necessary, Metro One and CUSTOMER shall reasonably cooperate
with each other in order to obtain such approvals.
6. COMPENSATION AND TERM.
a. RATE. CUSTOMER shall pay Metro One for the EDA services at the
rates listed in Exhibit 5. Billing and collecting from the
Callers for EDA services shall be CUSTOMER'S sole
responsibility.
b. CALL COUNTS. Metro One shall provide CUSTOMER with EDA call
count volume records in the format shown in Exhibit 4 by the
tenth of each month for the previous month's calls, which
records shall be made part of Metro One's invoice to CUSTOMER.
c. INVOICES AND PAYMENT TERMS. CUSTOMER shall pay Metro One
within thirty (30) days of the date of an invoice in the form
of Exhibit 4. Any invoice paid after thirty (30) days from the
date of invoice shall incur
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-10
interest in the amount of 1.5% a month from thirty (30) days
of the date of invoice until paid. Invoices shall be mailed on
or before the tenth (10th) day of the month of the date of
invoice.
d. Invoice Address. CUSTOMER'S monthly invoice shall be mailed to
CUSTOMER on or before the tenth (10th) day of the month
following service at the following address:
[ ]
[ ]
[ ]
CUSTOMER
e. TERM. Except as provided in Section 16 ("Termination") below,
this Agreement shall be for a three-year term commencing on
the date EDA services are made commercially available to
Callers.
7. MARKETING.
CUSTOMER shall be responsible for the manner of and cost of its
publicizing, advertising and marketing the EDA services provided to it
in the Call Origination Area. Without limiting the generality of the
foregoing, CUSTOMER shall be responsible for the following:
a. Establishing the rates and other terms and conditions under
which the EDA services shall be available to Callers. The
rates are as set forth in Exhibit 5 which may be amended from
time to time by mutual written agreement of the parties.
b. Conducting such promotional programs and advertising of the
EDA services as is commercially reasonable after notifying
Metro One in writing of such promotional programs and
advertising.
8. TRADEMARK/SERVICE ▇▇▇▇.
a. CUSTOMER shall own its trademarks and service marks, and Metro
One shall acquire no rights in such marks, other than the
non-exclusive license set forth in this Agreement. Metro One
acknowledges the validity of CUSTOMER'S marks and shall not
challenge or assist others in challenging the validity and
CUSTOMER'S sole ownership of such marks.
b. Metro One shall own its trademarks and service marks,
including but not limited to the Metro One Telecommunications,
Inc.-REGISTERED TRADEMARK-, Enhanced Directory
Assistance-REGISTERED TRADEMARK-, The Enhanced Directory
Assistance People-REGISTERED TRADEMARK-, StarBack-REGISTERED
TRADEMARK-, SureConnect-REGISTERED TRADEMARK-,
AutoBack-REGISTERED TRADEMARK-, CallBack-TM-, MessageBack-TM-,
MetroDex-TM-,
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-11
TeleConcierge-TM-, NumberBack-TM-, Enhanced Telecommunication
Services-TM-, Enhanced Telecom Services-TM-, and
db.One-TM-service marks, and CUSTOMER will acquire no
rights in such marks, other than the non-exclusive license set
forth in Section 8.e ("Trademark & Servicemark") of this
Agreement. CUSTOMER acknowledges the validity of Metro One's
marks and will not challenge or assist others in challenging
the validity and Metro One's sole ownership of such marks.
d. Each party acknowledges the goodwill associated with the
other's trademarks and service marks. Except as provided
herein, neither party will use any ▇▇▇▇ owned by the other
without prior written consent. Neither party shall register
any of the other party's trademarks, service marks or trade
names.
e. Metro One hereby grants CUSTOMER a non-exclusive license to
use the Metro One Telecommunications-REGISTERED TRADEMARK-,
Enhanced Directory Assistance-REGISTERED TRADEMARK-, The
Enhanced Directory Assistance People-REGISTERED TRADEMARK-,
StarBack-REGISTERED TRADEMARK-, SureConnect-REGISTERED
TRADEMARK-, AutoBack-REGISTERED TRADEMARK-, CallBack-TM-,
MessageBack-TM-, MetroDex-TM-, TeleConcierge-TM-,
NumberBack-TM-, Enhanced Telecommunication Services-TM-,
Enhanced Telecom Services-TM-, and db.One-TM- service marks in
CUSTOMER'S marketing of EDA services within the Call
Origination Area during the term of this Agreement.
f. All use of CUSTOMER'S marks by Metro One shall inure to the
benefit of CUSTOMER. All use of Metro One's marks by CUSTOMER
shall inure to the benefit of Metro One.
g. If a party uses a ▇▇▇▇ owned by the other, the use of the ▇▇▇▇
shall be only in accordance with the guidance and directions
furnished by the owner of the ▇▇▇▇, and the quality of any
associated goods or services must always be satisfactory to
the owner of the ▇▇▇▇.
9. ASSISTANCE.
Each party shall provide the other reasonable assistance in any matters
affecting this Agreement before any insurer, governmental ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ association or other organization. Such assistance may include
preparing and furnishing documents, providing advice and providing
qualified personnel to participate in hearings or other proceedings.
10. RECORDS.
During the term of this Agreement both parties shall maintain complete
and accurate records of each call using the EDA services, and shall
provide the other
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-12
access to such records upon request. Records shall be in a
mutually agreed upon format. The records shall include the
following:
a. The time the call is received;
b. The telephone number of the Caller; and
c. The number to which the call is connected.
11. COMPLAINTS.
a. Both parties shall refrain from any action that could
reasonably be anticipated to discredit or damage the name,
reputation, goodwill or good public relations of the other.
Each party shall use its best efforts to investigate and
respond to all oral or written complaints received by CUSTOMER
or Metro One from any Caller arising out of or in connection
with such party's obligations under this Agreement. In
handling any complaints, each party shall use its best efforts
to maintain and promote the goodwill of and good public
relations of the other party.
b. Both parties shall document any and all complaints from
Callers and others, whether verbal or written, and notify the
other, in writing, within five (5) business days of receipt of
such complaint. Both parties' notice to each other shall set
forth the name and telephone number of the complaining party,
the time and nature of the complaint, and a description of any
action taken (or proposed to be taken) by both parties in
connection with the complaint. Both parties shall provide each
other with a copy of all written complaints. In handling any
complaint, both parties shall maintain and promote the
goodwill of Metro One and CUSTOMER.
12. CONFIDENTIAL INFORMATION.
a. With respect to Confidential Information provided to the
receiving party under this Agreement, the receiving party
agrees to (i) hold the Confidential Information in confidence
and to protect it; (ii) restrict disclosure of the
Confidential Information solely to those employees,
contractors and agents of the receiving party with a
need-to-know to carry out the respective obligations under
this Agreement and not disclose it to any third party
(including corporate affiliates not a party to this
Agreement); (iii) advise the employees, contractors and agents
of their obligations with respect to the Confidential
Information; and (iv) use the Confidential Information only
for the purposes set forth in this Agreement, except as may
otherwise be mutually agreed upon in writing. In any event,
Metro One and CUSTOMER expressly agree not to sell, license,
release or disclose the other party's Confidential Information
to any competitor or potential competitor of the other or to
any LEC or affiliate thereof. However, Metro One and
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-13
CUSTOMER shall be permitted to disclose such information to
their accountants, legal, financial and marketing advisers as
are necessary for the performance of their respective duties,
or as required by law, provided that said advisers agree to be
bound by the provision of this Section 12 ("Confidential
Information"). In the event either party is requested or
required by lawful process to disclose Confidential
Information to any lawfully constituted authority, it is
agreed that the party requested or required to furnish the
Confidential Information shall provide the other party with
timely notice in order for that party to seek a protective
order or otherwise object.
b. Confidential Information shall not include information which
(i) was previously known to the receiving party free of any
obligation to keep it confidential and is so documented; (ii)
is disclosed to third parties by the disclosing party without
restriction; (iii) is or becomes publicly available by other
than unauthorized disclosure; or (iv) is independently
developed by the receiving party without use of the
Confidential Information and is so documented.
c. In the event either party is requested or required by oral
question, interrogatories, requests for information or
documents, subpoena or other lawful process, civil
investigative demand or similar process, to disclose
Confidential Information of the other to any lawfully
constituted authority, it is agreed that the party requested
or required to furnish the Confidential Information shall
provide the other party with timely notice in order for that
party to seek a protective order or otherwise object.
d. The provisions of this Section 12 ("Confidential Information")
shall survive two (2) years after the termination of this
Agreement, and, at the time of termination, the receiving
party shall upon request, return the Confidential Information
of the disclosing party which is in tangible form or certify
destruction of such Confidential Information.
e. All Confidential Information shall be considered trade secrets
and shall be entitled to all protections given by law to trade
secrets. In no event shall either party use the Confidential
Information of the other party to reverse engineer or
otherwise develop products or services functionally equivalent
to the products or services of the disclosing party.
f. The parties agree that it would be difficult to measure the
monetary damages that would be incurred by the other party by
reason of the failure of the other party to comply with the
terms of this Section 12 ("Confidential Information"). The
parties therefore agree that either party may seek
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-14
injunctive relief which the parties agree is appropriate for
enforcement of this Section 12 ("Confidential Information").
13. INDEMNIFICATION.
a. CUSTOMER and Metro One agree to defend, indemnify, and hold
harmless the other (the "Indemnified Party"), its employees
and agents, its affiliates and its successors and assigns from
and against all losses, damages, and liability (including all
claims, actions, suits, fines, interest, penalties, costs and
expenses) incident, relative to or arising from (i) any claim
relating to the subject matter of a misrepresentation or
breach of covenant, representation or warranty of the
Indemnifying Party contained herein, and (ii) any claim of
infringement of a patent, copyright trademark or other legally
protected proprietary right of any third party and (iii) any
injury to any person (including death) or damage to tangible
property resulting from the acts or omissions of the
Indemnifying Party, its employees or agents, whether negligent
or otherwise.
b. NOTICE OF CLAIMS. The obligations of Indemnifying Party stated
in this Section 13.a. ("Indemnification") above, apply only if
(i) Indemnified Party shall promptly inform Indemnifying Party
in writing of any claim within the scope of Section 13.a.;
(ii) Indemnifying Party is given exclusive control of the
defense of such claim and all negotiations relating to its
settlement, except that Indemnified Party shall have final
approval of settlement provisions; and (iii) Indemnified Party
shall assist Indemnifying Party in all necessary respects in
conduct of the suit and settlement negotiations.
c. NO SPECIAL DAMAGES. Neither party will be liable to the other
for special, indirect, or consequential loss or damage,
whether or not such loss or damage is caused by the fault or
negligence of that party, its employees, agents, or
subcontractors.
d. SURVIVAL OF INDEMNITY. Indemnity obligations for acts arising
prior to expiration or termination of this Agreement under
this Section 13 ("Indemnification") will survive any
expiration or termination of this Agreement or the Orders
hereunder for a period of three (3) years following any
expiration or termination of this Agreement or the Orders
hereunder.
14. CALL MONITORING / RECORDING FEATURE
a. The CUSTOMER requests that Metro One provide access to
recordings of the operator assisted portion of EDA calls for
its Callers for purposes of monitoring of quality of EDA
service. Metro One will provide such access in locations
where, in its sole discretion, the law will permit the
recording of calls for limited purposes of performance
evaluation.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-15
CUSTOMER agrees to provide notice to Callers through the
following agreed upon procedures:
(i) For the first three months after this Agreement
becomes effective, CUSTOMER will print a message in
the body of all bills to all Callers for wireless
service. That message will read as follows:
"Your directory assistance calls may be monitored /
recorded for quality assurance purposes. Only the
operator portion of the call will be monitored /
recorded"
(ii) Beginning with the effective date of this Agreement,
the CUSTOMER will add language in its Caller service
contracts that provides notice of call monitoring for
quality purposes. Such language will include the
following:
[PLEASE PROVIDE A COPY OF THE CALLER CONTRACT. METRO ONE WILL
SUGGEST LANGUAGE TO BE INSERTED IN THE AGREEMENT BETWEEN
CUSTOMER AND ITS CALLER FOR DISCUSSION.]
b. CUSTOMER shall indemnify and hold harmless Metro One and its
officers, directors, employees, and agents and their
successors and assigns against and from any and all losses,
liabilities, damages, claims, demands, and expenses (including
without limitation, reasonable attorneys' fees), arising out
of or in conjunction with recording of and access to recorded
EDA calls provided by Metro One to CUSTOMER.
CUSTOMER shall defend, at its sole cost and expense, any claim
or action of any kind against Metro One for alleged violation
or infringement of privacy rights. CUSTOMER shall also keep
Metro One fully informed as to the progress of such defense
and afford Metro One, at its own expense, an opportunity to
participate on an equal basis with CUSTOMER in the defense or
settlement of any such claim.
CUSTOMER acknowledges that it has read and understands the
policies of Metro One with regard to recorded call
information.
c. Upon receiving CUSTOMER request and verifying authenticity, a
Metro One System Administrator will issue a Digital
Certificate allowing access to the appropriate CUSTOMER
designee, identified in writing below. Such Digital
Certificate access may be changed periodically at the
discretion of the Metro One System Administrator. Upon
request, CUSTOMER agrees to
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-16
confirm in writing to System Administrator, the continuing
appropriateness of the individual receiving access.
CUSTOMER also agrees to:
(i) Limit access to such Digital Certificate and to the
recorded EDA calls to that designee specifically
authorized herein and who has entered into
appropriate confidentiality agreements and
(ii) To inform Metro One of any malfunction or anomaly in
the access to recorded calls, including access to any
other recorded calls other than those of CUSTOMER.
CUSTOMER authorized designee to receive access to recorded EDA
calls:
Name:________________________
Title:_________________
CUSTOMER agrees that distribution of protected access will be
treated as confidential information. Changes in the authorized
designee will be identified in writing to Metro One at the
following address:
Manager - Customer Care
Metro One Telecommunications, Inc.
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d. CUSTOMER agrees that use of and access to recorded calls is
only for use in evaluation of the procedures by which Metro
One handles EDA calls or evaluation of specific Caller
complaints.
e. CUSTOMER agrees that no copies of recorded call information
shall be made, either in written, audio, or other electronic
form.
f. Metro One will not provide any copies of such recorded call
information to anyone except in response to legitimate legal
process or orders from courts or other regulatory agencies and
then only as is commercially feasible.
15. DISPUTE RESOLUTION.
This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Oregon, without regard to its
principles of conflicts of law. Any controversy or claim arising out of
or related to the provision of EDA Services hereunder provided under
this Agreement, or breach thereof, shall be settled as
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-17
described below. The parties acknowledge that time is of the essence in
resolving disputes.
The parties desire to resolve disputes arising out of this Agreement
without litigation. Accordingly, except for action seeking a temporary
restraining order or injunction related to the purposes of this
Agreement or suit to compel compliance with this dispute resolution
process, or CUSTOMER's right to implead Metro One after any refusal to
comply with Section 13 ("Indemnification"), the parties agree to use
the following alternative dispute resolution procedure as their sole
remedy with respect to any controversy or claim arising out of or
relating to this Agreement or its breach.
At the written request of a party, each party shall appoint a
plenipotentiary to meet and negotiate in good faith to resolve any
dispute arising under this Agreement. Upon agreement, other alternative
dispute resolution procedures such as mediation to assist in the
negotiations may be utilized. All discussions and correspondence
arising out of these negotiations shall be treated as confidential
information developed for purposes of settlement, exempt from discovery
and production, which shall not be admissible in the arbitration
described below or in any lawsuit with the concurrence of all parties.
Documents identified in or provided with such communications, which are
not prepared for purposes of the negotiations, are not so exempted and
may, if otherwise admissible, be admitted in evidence in the
arbitration or lawsuit.
If the negotiations do not resolve the dispute within sixty (60) days
of the initial written request, the dispute shall be submitted to
binding arbitration as described below in accordance with the rules of
the American Arbitration Association.
Each party shall bear its own cost of these procedures. A party seeking
discovery shall reimburse the responding party the cost of production
of documents. The parties shall equally share the fees of the
arbitration and the arbitrator.
The board of arbitrators shall be composed of three (3) arbitrators.
Each party shall appoint one (1) arbitrator. The two (2) arbitrators so
designated shall designate the third arbitrator. If any party fails to
choose an arbitrator within fifteen (15) days after notice of
commencement of arbitration, the American Arbitration Association
shall, upon request of either party, appoint the arbitrator or
arbitrators to constitute or complete the panel as the case may be. The
arbitration shall be held in Portland, Oregon, and shall be conducted
in English. The award rendered by the arbitration panel shall apportion
the costs of arbitration. The panel need not be bound by the strict
rules of law in making its decision, but may reach conclusions and
render an award as a reasonable person.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-18
Any controversy or claim relating to the provision of EDA services,
provided hereunder and arising after the expiration or termination of
this Agreement, shall be handled as described in Section 2.p
("Provisions of EDA Services"). If the parties can not reach an
acceptable resolution the matter shall be submitted to binding
arbitration pursuant to this Section 15 ("Dispute Resolution").
The arbitration award shall be final and binding on the parties and
judgment thereon may be entered in any court having jurisdiction
thereof or having jurisdiction over any of the parties or their assets.
16. TERMINATION.
a. CUSTOMER may terminate this Agreement immediately if Metro One
is in material breach of or default under this Agreement by
giving Metro One written notice of such termination. Any
failure by Metro One to perform any of its material
obligations in accordance with this Agreement, where such
failure continues for thirty (30) days after written notice to
Metro One shall constitute a material breach of and default
under this Agreement by Metro One.
b. Metro One may terminate this Agreement immediately if CUSTOMER
is in material breach of or default under this Agreement by
giving CUSTOMER written notice of such termination. The
occurrence of any of the following events shall constitute a
material breach of and default under this Agreement by
CUSTOMER:
i. Any failure by CUSTOMER to perform any of its
material obligations in accordance with this
Agreement, where such failure continues for thirty
(30) days after written notice to CUSTOMER; or
ii. If CUSTOMER fails to pay when due any invoice, where
such failure continues for thirty (30) days after
written notice to CUSTOMER; or
iii. If CUSTOMER fails to route to Metro One all calls
agreed herein in Section 2.q. ("Provisions of EDA
Services") above, where such failure continues for
ten (10) days after written notice to CUSTOMER.
c. Either party may terminate this Agreement if any circumstance
would render the continued performance of this Agreement by
either party in violation of any applicable law, statute, rule
or regulation despite the parties' good faith efforts to
rewrite the terms of this Agreement.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-19
d. Upon termination or expiration of this Agreement, in addition
to any other rights or remedies of either party, Metro One
shall:
i. Cease to provide the EDA services to Callers; and
ii. Deliver to CUSTOMER a final invoice for amounts
payable under Section 6 ("Compensation and Term") of
this Agreement.
e. Upon termination of this Agreement both parties shall:
i. Promptly return to the other party all materials
containing any Confidential Information of such
party; and
ii. Cease all use of the other party's trademarks.
17. ASSIGNMENT.
Neither party may assign or transfer this Agreement or any of its
obligations hereunder without the prior written consent of the other,
which consent shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing either party may upon thirty
(30) business days prior written notice to the other, assign all of its
rights, duties and obligations under this Agreement to any affiliate or
affiliates of that party or to a partnership or partnerships in which
that party or its affiliate has an interest.
18. UCC.
This Agreement shall be subject to the provisions of the Uniform
Commercial Code as adopted in Oregon.
19. SERVICE TESTING.
Unless CUSTOMER is prohibited by law, for each Call Origination Area,
CUSTOMER shall provide Metro One at CUSTOMER expense two (2) telephones
and access lines on CUSTOMER'S system for technical support and quality
control of the Metro One System.
20. SURVIVAL OF OBLIGATIONS.
The obligations set forth in Sections 8 ("Trademarks"), 12
("Confidential Information"), 15 ("Dispute Resolution") and in this
Section 20 ("Survival of Obligations"), shall survive any termination
or expiration of this Agreement.
21. CAPTIONS.
Section captions are inserted only for convenience and are in no way to
be construed as part of this Agreement.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-20
22. NOTICES.
Notices required by this Agreement must be sent by certified mail,
return receipt requested, to the address listed below, or to such
address as the parties may from time to time by notice provide.
To Metro One: President
Metro One Telecommunications, Inc.
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To CUSTOMER:
Notice shall be deemed effective on the date the return receipt shows the notice
was accepted or refused.
23. SEVERABILITY.
If for any reason any provision of this Agreement shall be deemed by a
court of competent jurisdiction to be legally invalid or unenforceable,
the validity, legality and enforceability of the remainder of this
Agreement shall not be affected and such provision shall be deemed
modified to the minimum extent necessary to make such provision
consistent with applicable law, and, in its modified form, such
provision shall then be enforceable and enforced.
24. INDEPENDENT CONTRACTOR.
It is agreed and understood that Metro One and CUSTOMER are not agents,
representatives or employees of each other.
25. NO THIRD PARTY BENEFICIARIES.
Callers shall not be third party beneficiaries under this Agreement.
Nothing expressed or implied in this Agreement is intended or shall be
construed to confer or give any person other than CUSTOMER and Metro
One, their respective successors and permitted assigns any rights or
remedies under or by reason of this Agreement.
26. FORCE MAJEURE.
Neither party is responsible for delays in performance caused by wars,
fires, strike, embargoes, priority exclusion of either party's business
by government authorities, transportation conditions (including
telecommunication transmission failures), material shortages, natural
disasters, severe weather or other causes beyond its reasonable
control. Such delays shall not be construed as a breach under Section
16 ("Termination).
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-21
27. LIMITATION OF LIABILITY.
a. In no event shall Metro One's liability to the CUSTOMER for
damages of any kind arising out of or in connection with this
Agreement, whether claimed in contract, equity, tort
(including negligence or strict liability), warranty or
otherwise, exceed the aggregate prices paid by CUSTOMER for
products and services under this Agreement.
b. In no event shall Metro One be liable to CUSTOMER for any
special, incidental, indirect or consequential damages of any
kind, or for the loss of profit, revenue or data of CUSTOMER
arising out of or in connection with this Agreement, even if
Metro One had been advised of the possibility of such
potential loss or damage. CUSTOMER further agrees that Metro
One shall not be liable for any claim or demand against Metro
One or CUSTOMER by any other party arising out of or in
connection with this Agreement.
c. It is agreed that the limitation of remedies/liability set
forth in this Section 27 ("Limitation of Liability"), and
elsewhere in this agreement, allocates the commercial risk
between Metro One and CUSTOMER arising out of or in connection
with this Agreement, including, but not limited to EDA Service
failure, and that the prices and other terms and conditions of
this agreement reflect this allocation of risk.
28. WAIVER.
The waiver or failure of any party to exercise any rights under this
Agreement shall not be deemed a waiver of any other right or any future
right.
29. APPLICABLE LAW.
This Agreement shall be governed by, construed and enforced in
accordance with the law of the State of Oregon, without regard to its
principles of conflicts of law.
30. ENTIRE AGREEMENT.
This Agreement and the Exhibits attached hereto constitute the entire
agreement between the parties, and supersedes any and all prior
negotiations, representations, correspondence, understandings and
agreements with respect to the subject matter hereof. No amendment or
modification of any of the terms of this Agreement shall be effective
unless in writing signed by both parties.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-22
Entered into as of the date first above written.
METRO ONE TELECOMMUNICATIONS, INC. CUSTOMER
By: By: __________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: __________________________
Title: President Title: __________________________
Date: _____________________________ Date: __________________________
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-23
EXHIBIT 1 CALL ORIGINATION AND COMPLETION AREAS
The Call Origination Area includes the area(s) listed below:
[to be supplied by CUSTOMER.]
The Call Completion Area includes the area(s) listed below:
All states and territories of the United States.
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-24
EXHIBIT 2 NUMBERS EXPRESSLY PROHIBITED BY CUSTOMER
NPA - 976 - XXXX
976 - XXXX
700 - NXX - XXXX
900 - NXX - XXXX
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-25
EXHIBIT 3 TIMELINE TASKS
The "Go Live Date" shall be ________________, 19___.
CUSTOMER RESPONSIBILITIES
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DATE 1 DATE 2 DATE 3 DATE 4
------ ------ ------ ------
Terminate Trunks to Metro One
|----------------------------------|
Testing , Signaling & Billing
|-------------------------------------------------|
|----------------- >
"Go Live Date"
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METRO ONE RESPONSIBILITIES
-------------------------------------------------------------------------------------------------------------------
DATE 1 DATE 2 DATE 3 DATE 4
------ ------ ------ ------
Terminate CUSTOMER Provided Trunks
|----------------------------------|
Testing & Signaling
|----------------------------------------------|
|---------------- >
"Go Live Date"
-------------------------------------------------------------------------------------------------------------------
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-26
EXHIBIT 4 INVOICE
METROONE
Customer Account No. XXXX
EDA Customer
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INVOICE SUMMARY
ENHANCED DIRECTORY ASSISTANCE CUSTOMER
JANUARY 1, 1999
SITE LOCATION: SPOKANE, WA
Previous Balance $8,076.40
Payments (8,076.40)
Interest on late payments 0.00
Current Charges 0.00
TOTAL DUE $0.00
Charges are due thirty (30) days from date of invoice.
A charge of 1.5% per month will be assessed on
accounts past 30 days.
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ENHANCED DIRECTORY ASSISTANCE AGREEMENT-27
Page 1 of 2
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-28
ENHANCED DIRECTORY ASSISTANCE CUSTOMER
DETAIL OF CURRENT MONTH'S CHARGES
CALL CALL NET CALL NET
DAY DATE VOLUME CREDITS VOLUME CHARGE
-------------------------------- ------------------------------------------------------------------------------------
Sat 01-Mar 0 0 0 0.00
Sun 02-Mar 0 0 0 0.00
Mon 03-Mar 0 0 0 0.00
Tue 04-Mar 0 0 0 0.00
Wed 05-Mar 0 0 0 0.00
Thu 06-Mar 0 0 0 0.00
Fri 07-Mar 0 0 0 0.00
Sat 08-Mar 0 0 0 0.00
Sun 09-Mar 0 0 0 0.00
Mon 10-Mar 0 0 0 0.00
Tue 11-Mar 0 0 0 0.00
Wed 12-Mar 0 0 0 0.00
Thu 13-Mar 0 0 0 0.00
Fri 14-Mar 0 0 0 0.00
Sat 15-Mar 0 0 0 0.00
Sun 16-Mar 0 0 0 0.00
Mon 17-Mar 0 0 0 0.00
Tue 18-Mar 0 0 0 0.00
Wed 19-Mar 0 0 0 0.00
Thu 20-Mar 0 0 0 0.00
Fri 21-Mar 0 0 0 0.00
Sat 22-Mar 0 0 0 0.00
Sun 23-Mar 0 0 0 0.00
Mon 24-Mar 0 0 0 0.00
Tue 25-Mar 0 0 0 0.00
Wed 26-Mar 0 0 0 0.00
Thu 27-Mar 0 0 0 0.00
Fri 28-Mar 0 0 0 0.00
Sat 29-Mar 0 0 0 0.00
Sun 30-Mar 0 0 0 0.00
Mon 31-Mar 0 0 0 0.00
TOTAL CURRENT
MONTHLY CHARGES 0 0 0 0.00
Page 2 of 2
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-29
EXHIBIT 5 RATES
The service(s) and product features outlined herein shall be provided at the
following rates:
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ENHANCED DIRECTORY ASSISTANCE SHORT MESSAGE SERVICES
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[ ] per call. [ ] per message.
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ENHANCED DIRECTORY ASSISTANCE AGREEMENT-30
EXHIBIT 6 FAILURE NOTICE
METRO ONE TELECOMMUNICATIONS, INC.
Metro One Network Operations Center (7X24)
Beaverton, Oregon
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(▇▇▇) ▇▇▇-▇▇▇▇ Fax
(CITY) Call Center
------------
CITY, STATE
(NPA) NXX-XXXX
(NPA) NXX-XXXX Fax
CUSTOMER
[ ]
[ ]
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-31
EXHIBIT 7 PRINCIPLE SITES FOR PROVISION OF SERVICE
[To be provided by Metro One and CUSTOMER.]
ENHANCED DIRECTORY ASSISTANCE AGREEMENT-32